STOSSEL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRITTANY L. S., )

)

Plaintiff, )

)

v. ) 1:25CV554

)

FRANK BISIGNANO, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE TUDGE

Plaintiff Brittany L. S. ("Plaintiff') brought this action pursuant to Sections 205(g) and

1631(c)(3) of the Social Security Act (the "Act"), as amended (42 U.S.C. §§ 405(g) and

1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security

denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security

Income ("SSI") under, respectively, Titles II and XVI of the Act. The parties have filed cross­

motions for judgment, and the administrative record has been certified to the Court for review.

I. PROCEDURAL HISTORY

Plaintiff protectively filed applications for DIB and SSI on February 17, 2016, alleging

a disability onset date of October 30, 2015 in both applications. (Tr. at 221, 563-66.)1 Her

applications were denied initially (Tr. at 178-195, 269-77) and upon reconsideration (Tr. at

1 Transcript citations refer to the Sealed Administrative Record [Doc. #2].

196-217, 283-300). Thereafter, Plaintiff requested an administrative hearing de novo before

an Administrative Law Judge (“ALJ”). (I't. at 301-02.) On April 3, 2018, Plaintiff, along with

her attorney, attended the subsequent hearing with an ALJ, at which Plaintiff and an impartial

vocational expert testified. (I't. at 221, 142-77.) In a decision dated May 19, 2019, a different

AL] concluded that Plaintiff was not disabled within the meaning of the Act. (Tr. at 229.)

However, a year later, on May 14, 2020, the Appeals Council issued an Order remanding

Plaintiffs case for a new hearing. (Tr. at 235.) Accordingly, Plaintiff's second administrative

heating took place by telephone on February 5, 2021, before yet another ALJ. (Tr. at 242.)

Plaintiff was again represented by counsel, and both Plaintiff and an impartial expert again

testified. (Tr. at 242, 109-141.) Following this heating, in a decision dated September 8, 2021,

the AL] determined that Plaintiff was not disabled under the Act. (Tr. at 254.) Plaintiff again

sought review by the Appeals Council, who remanded Plaintiffs claims for a third hearing.

(Tr. at 261-268.) This hearing, which took place via online video, occurred on June 29, 2023,

before the ALJ who conducted Plaintiffs second heating, and again involved Plaintiff, her

attorney, and an impartial vocational expert. (T'r. at 40, 69-108.) ‘The AL] issued the

unfavorable decision now at issue on October 10, 2023 (Tr. at 59), and on April 28, 2025, the

Appeals Council denied Plaintiffs request for review, thereby making the AL)’s ruling the

Commissionet’s final decision for purposes of judicial review (T't. at 1-7).

Il. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

AL] if they are supported by substantial evidence and were reached through application of the

correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal

quotation omitted).

“Substantial evidence means “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) Gnternal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a jury, then thete is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to re-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472 (citation omitted).

“The issue before [the reviewing court], therefore, is not whether [the claimant] is disabled,

but whether the ALJ’s finding that [the claimant] is not disabled is supported by substantial

evidence and was teached based upon a correct application of the relevant law.” Craig v.

Chater, 76 F.3d 585, 589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “‘inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.”’ Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

“The Commissioner uses a five-step ptocess to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C-F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the inquiry. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

2 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDI), established by Title IT of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Security Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDD; 20 C.E.R. pt. 416 GSD, governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

On the other hand, if a claimant carries his or her burden at the first two steps, and if

the claimant’s impaitment meets or equals a “listed impaitment” at step three, “the claimant

is disabled.” Mastto, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

but falters at step three, i.e., “[i]f a claimant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the AL] must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.3 Step four then requires the ALJ to assess whether, based on

that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite [the claimant’s]

impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide

“whether the claimant is able to perform other work considering both [the claimant’s RFC]

and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its

“evidentiary burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

3 “REC is a measurement of the most a claimant can do despite [the clatmant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-

telated physical and mental activities in a work setting on a regular and continuing basis .. . [which] means 8

hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations

(mental, sensory, or skin impaitments).” Hall, 658 F.2d at 265. “RFC is to be determined by the AL] only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g, pain).”

Hines, 453 F.3d at 562-63.

Ill. DISCUSSION

In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since October 30, 2015, her alleged onset date.t The AL] therefore concluded that

Plaintiff met her burden at step one of the sequential evaluation process. (I't. at 43.) At step

two, the ALJ further determined that Plaintiff suffered from the following severe impairments:

Diverticulosis; Cholelithiasis; Chronic Gastritis; rupture of anterior cruciate

ligament of the left knee; morbid obesity; derangement of the left knee; single

kidney; loin pain hematuria syndrome; anterior cruciate ligament rupture (ACL);

status-post left knee arthroscopy; status-post medial meniscal repair; status-post

lateral meniscal repair; status-post reconstruction of anterior cruciate ligament;

internal derangement of knee; ulnar neutopathy; migraine headaches; and

chronic kidney disease[.]

at 43.) The AL] found at step three that none of these impairments, individually or in

combination, met or equaled a disability listing. (Tr. at 47-49.) Therefore, the ALJ assessed

Plaintiffs RFC and determined that she could perform sedentary work, but with the following,

non-exertional limitations:

[Plaintiff] can sit for up to six hours and stand/walk up to two hours. She is

able to frequently reach, handle, finger[,] and feel bilaterally. She can

occasionally use ramps and staits, balance, stoop, kneel, and crouch. This

individual requires a hand-held assistive device, a cane, for ambulation. She can

have no exposute to unprotected heights, dangerous machinery[,] or ladders,

topes, ot scaffolds. This individual should have no exposure to extremes of

heat or cold and no exposure to loud noise levels. [She can undertake f]requent

use of hand controls and occasional use of foot controls. In addition to normal

breaks, this individual would be off task for five percent of the time.

* Notably, Plaintiff's was last insured for purposes of DIB on March 31, 2019. Thus, the relevant period for

her DIB claim extends from October 30, 2015 to March 31, 2019. In contrast, the period at issue for purposes

of SSI runs from the date of her Application, February 17, 2016, through the date of the AL]’s decision, October

13, 2023.

(Tr. at 49.) At step four of the analysis, the ALJ determined, based on the testimony of the

vocational expert, that all of Plaintiffs past relevant work exceeded the above RFC. (It. at

58.) However, the ALJ concluded at step five that, given Plaintiffs age, education, work

experience, and RFC, along with the testimony of the vocational expert regarding those

factors, Plaintiff could perform other jobs available in the national economy and therefore was

not disabled under the Act. (Tr. at 58-59.)

Plaintiff now challenges the AL]’s decision in multiple respects. Plaintiff first contends

that the AL] erred by (1) finding PlaintifPs depression and anxiety to be non-severe

impairments as step two of the sequential analysis and by (2) failing to later discuss the impact

of these impairments on Plaintiffs RFC. (Pl.’s Br. [Doc. #7] at 4-13.) She also argues that

the AL] improperly discounted the severity of Plaintiff's pain, particularly pain associated with

Plaintiff's loin pain hematuria syndrome, which the AL] included among Plaintiffs severe

impairments. (Pl’s Br. at 13-14, 16-21.) Finally, Plaintiff contends that the AL] failed to

properly evaluate the medical opinion issued by Dr. John Hubbard, Plaintiffs treating

orthopedist. (Pl.’s Br. at 14-16.) After a thorough review of the record, the Court finds that

substantial evidence fails to support the AL]’s decision regarding Plaintiffs mental

impairments and her loin pain hematuria syndrome.

A. Depression and anxiety

Plaintiff first contends that the ALJ erred in failing to include depression and anxiety

among het sevete impairments at step two or consider the effects of these impairments at

later steps of the sequential analysis. (Pl.’s Br. at 4-13.) At step two, a plaintiff must establish

a “severe impairment,” that is, an impaitment or combination of impairments that significantly

limits the claimant’s physical or mental ability to do basic work activities. 20C.F.R.

§ 404.1520(c). A non-severe impairment is defined as one that “does not significantly limit [a

plaintiff's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522(a).

“Basic work activities” are defined as functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, handling, seeing, hearing, speaking, understanding,

catrying out and remembering simple instructions, using judgment, responding appropriately

to co-workers and supervisors, and dealing with changes in a routine work setting. 20 C.F.R.

§ 404.1522(b).

Notably, failure to include a severe impairment at step two does not automatically

necessitate remand. “As long as the ALJ determines that the claimant has at least one severe

impairment and proceeds to discuss all of the medical evidence, any error regarding failure to

list a specific impairment as sevete at step two is harmless.” McClain v. Colvin, No.

1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014) (citations omitted); see also

Blevins v. Colvin, No. 5:15-cv-14240, 2016 WL 6987169, at *9 (S.D. W. Va. Sept. 16, 2016)

(collecting cases). However, in the present case, Plaintiff contends that the ALJ’s subsequent

analysis also failed to account for the effects of her mental impairments on her ability to work.

As Plaintiff correctly notes, when evaluating mental impairments, an AL] must employ

the special technique described in 20 C.F.R. § 404.1520a to rate the degree of functional

limitation resulting from the impaitment(s). See 20 C.F.R. § 404.1520a(b)(2). A five-point

scale (none, mild, moderate, marked, and extreme) is used to rate the degree of functional

limitation in four broad functional areas: (1) understanding, remembering, or applying

information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and

(4) adapting ort managing oneself. 20 C.F.R. § 404.1520a(c)(3)-(4). A rating of moderate or

greater limitation in at least one of these ateas indicates that a mental impairment significantly

impacts a claimant’s ability to work, or in other words, that the impairment is “severe.” In the

ptesent case, the ALJ found that Plaintiff had no more than mild limitations in any of

patagraph B functional areas, and he therefore found Plaintiffs anxiety and depression to be

non-sevete. (Ir. at 45-47.)

However, the prior decision by the same AL], dated September 8, 2021, included both

“Depressive Disorder” and “Anxiety Disorder” as severe impairments at step two. (I. at

245.) In making this finding, the ALJ determined that Plaintiff had moderate limitations in all

four functional areas. (Tr. at 247-48.) The ALJ then proceeded to incorporate mental

limitations in Plaintiffs RFC assessment. Specifically, he determined that Plaintiff was

“limited to simple, routine tasks and simple work-related decisions not at a production pace.”

(Tr. at 248.) He also found that Plaintiff could “tolerate frequent contact with supervisors and

coworkers but no contact with the public and can adapt to occasional changes in the workplace

setting.” (Tr. at 248.)

As an initial matter, the Court notes that, because the 2021 decision was remanded by

the Appeals Council, this is not an instance in which the ALJ at the subsequent hearing was

required, under Albright, to consider a prior, final decision by the Commissioner.> However,

both the substance of the AL]’s prior decision and the basis for the Appeals Council remand

Under Albright v. Comm’r of Soc. Sec. Admin., 174 F.3d 473 (4th Cit. 1999) and Acquiescence Ruling (“AR”)

(4), adjudicators in subsequent disability claims must consider any prior, final administrative findings as

evidence “and give them ‘appropriate weight,’ considering such factors as the effects of the passage of time on

the continuing applicability of the findings and the extent that evidence not previously considered provides a

basis for making a different findings in the subsequent claim.”

are potentially relevant, as the two decisions cover the same time period and evidence. Most

notably, in issuing its Remand Order, the Appeals Council found that with regard to Plaintiffs

mental impairments, the AL] should further assess Plaintiffs mental limitations to determine

if the met or equaled a Listing, and should expressly discuss which findings in the record

support limitations and restrictions attributable to Plaintiffs mental impairments. (T'r. at 264-

65.) The Appeals Council instructed the AL] on remand to “[ffurther evaluate the claimant’s

mental impairments in accordance with the special technique described in 20 CFR 404.1520a

and 416.920a, documenting application of the technique in the decision by providing specific

findings and appropriate rationale for each of the functional areas described in 20 CFR

404.1520a(c) and 416.920a(c).” (It. at 265.) The Council further instructed the AL] to “obtain

evidence from a medical expert related to the nature and severity of and functional limitations

resulting from the claimant’s impaitments” and “evaluate the medical source opinions □□ .

from state agency medical and psychological consultants and other program physicians and

psychologists in accordance with [the regulations]. (T'r. at 265.)

Rather than including additional, supporting evidence to support the “moderate”

findings included in his 2021 decision, or otherwise explaining which findings supported

which restrictions as required by Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the ALJ on

remand instead reduced his “paragraph B” findings from moderate to mild, thereby bypassing

both the Council’s directives and the need for greater explanation at subsequent steps of the

sequential analysis. (See Tr. at 45-47.) In doing so, the ALJ summarily dismissed or minimized

evidence of severe and limiting mental impairments, including two psychiatric inpatient

admissions during the time period at issue as well as ongoing mental counseling and a plethora

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of medications for treatment of anxiety and depression spanning the entite seven years at issue

here.

Although the ALJ acknowledged that Plaintiff “required [a] brief psychiatric

hospitalization in 2020,” he discounted this incident as “a direct result of accidental overdose

on medication that she believed would help her pain levels, and she convincingly denied that

this was an attempt at self-harm.” (T'r. at 46.) However, records reflect that Plaintiff was

having “auditory hallucinations”, and she took 60 Mucinex-DM because “she did not want to

be in any pain.” (Ir. at 1730.) She was noted to have a history of depression and anxiety and

was assessed with a “depressed affect” and “poor insight,” and was diagnosed with “Major

Deptessive, recurrent episode, severe with psychotic features.” (Tr. at 1822.) She was

admitted to inpatient behavioral health, and the treatment team recommended keeping her

longer to try to get to “better mood stability” but Plaintiff wanted to “go home and be with

her husband and children.” (Tr. at 1733, 1807.) Notably, a month later, in late February 2020,

Plaintiff required an additional six-day psychiatric admission, after she “presented to the

emergency department hysterically crying, tearful, and anxious stating that she has an abusive

husband who has been trying to poison her” by “forcfing] her to take Musinex DM and

OxyContin pills.” (Tr. at 1744.) Crucially, the ALJ failed to address this second psychiatric

admission at all in his more recent decision.

A few months later, in June 2020, Plaintiff again reported that she was “on the verge

of another manic episode” with “agitation, behavioral problems, decreased concentration.”

(Tr. at 1883, 1887.) The later record reflects ongoing mental health treatment for anxiety and

depression in 2021, 2022, and 2023, including daily medication of 40mg Prozac and 10mg

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Zyptexa (used to treat schizophrenia and bipolar I disorder) after having “failed effexor and

cymbalta.” (Tr. at 2107, 2292, 2301, 2396, 2404, 2481.)

Most notably, the record contains no medical opinion evidence relating to Plaintiffs

mental impairments, in the form of State agency psychological assessments, consultative

examinations, treating provider opinions, or otherwise. ‘The only medical review was a state

agency physician in 2016 (Tr. at 194-206), but no assessment of Plaintiffs mental impairments

was made because they developed later, and no consultative examination or subsequent

medical review ot assessment was obtained. Thus, the ALJ’s conclusion that Plaintiffs anxiety

and depression caused no more than mild limitations—and therefore had no discernable effect

on her ability to work—is based on little more than his lay interpretation of the treatment

record, with no medical teview or opinion. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir.

2017) (citing 20 CF.R. §§ 404.1529, 416.929 and remanding where the lack of medical support

for the ALJ's conclusions “amount[ed] to the AL] imptoperly ‘playing doctor.” (citation

omitted)); Shaw v. Berryhill, No. 1:17CV91, 2018 WL 1322159, at *8 (M.D.N.C. Mar. 14,

2018) (temanding where “[t]he AL] did not enlist the assistance of a medical expert to review

the more recent evidence or provide an opinion regarding the extent of Plaintiffs mental

impairments for the later period, and as a result, no medical professional has reviewed the

records ot provided an opinion for the time petiod.”’).

An ALJ “has a duty to explore all relevant facts and inquire into the issues necessary

for adequate development of the record, and cannot rely only on the evidence submitted by

the claimant when that evidence is inadequate.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th

Cir. 1986) (citation omitted). Development of the record may include ordering a consultative

12

examination, and the regulations address the circumstances under which an AL] may order

such an examination, including where “[t]here is an indication of a change in [the claimant’s]

condition that is likely to affect [the claimant’s] ability to work, but the current severity of [the

claimant’s] impairment is not established.” 20 C.F.R. §§ 404.1519a(b), 416.919a(b). See also

Marsh v. Harris, 632 F.2d 296, 300 (4th Cir. 1980) (holding that remand is warranted for failure

to develop the administrative record “[w]here the AL] fails in his duty to fully inquire into the

issues necessary for adequate development of the record, and such failure is prejudicial to the

claimant”); Oakes v. Kiyjazaki, 70 F.4th 207, 213 (4th Cir. 2023) (noting that where the evidence

in the record is incomplete or insufficient, the ALJ may obtain additional evidence as

necessaty, including obtaining a medical opinion or a consultative examination). By failing to

procure opinion evidence or any type of consultative examination or medical expert review

regarding Plaintiffs mental impairments, the AL] ignored the Appeals Council’s ditectives and

failed to develop the medical evidence to support his determination. (I't. at 265.) Because the

ALJ obtained no such supplementary opinion evidence and instead minimized or ignored the

evidence before him when assessing Plaintiffs mental impairments, remand is required.

B. Loin pain hematuria syndrome

Plaintiff also contends that the ALJ failed to properly consider pain arising from her

loin pain hematuria syndrome. Under the applicable regulations, the ALJ’s decision must

“contain specific reasons for the weight given to the individual’s symptoms, be consistent with

and supported by the evidence, and be clearly articulated so the individual and any subsequent

reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Social Security

Ruling 16-3p, Titles IT and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p,

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2017 WL 5180304 (Oct. 25, 2017) (“SSR 16-3p”); see also 20 C.F.R. § 404.1529. Moreover,

in Arakas v. Commm’r Soc. Sec. Admin., 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit clarified

the procedure an ALJ must follow when assessing a claimant’s statements, including pain:

When evaluating a claimant’s symptoms, ALJs must use the two-step

framework set forth in 20 C.P.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029

(Mar. 16, 2016). First, the ALJ must determine whether objective medical

evidence presents a “medically determinable impairment” that could reasonably

be expected to produce the claimant’s alleged symptoms. 20 C.F.R.

§ 404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.

Second, after finding a medically determinable impairment, the ALJ must assess

the intensity and persistence of the alleged symptoms to determine how they

affect the claimant’s ability to work and whether the claimant is disabled. See 20

C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step,

objective evidence is required to find the claimant disabled. SSR 16-3p, 2016

WL 1119029, at *4-5. SSR 16-3p recognizes that “[s]ymptoms cannot always

be measured objectively through clinical or laboratory diagnostic

techniques.” Id. at *4. Thus, the ALJ must consider the entire case record and

may “not disregard an individual’s statements about the intensity, persistence,

and limiting effects of symptoms solely because the objective medical evidence

does not substantiate” them. Id. at *5.

983 F.3d at 95-96. Thus, the second part of the test requites the ALJ to consider all available

evidence, including Plaintiffs statements about her pain, in order to evaluate “the intensity

and persistence of the claimant’s pain, and the extent to which it affects [her] ability to work[.]”

Craig, 76 F.3d at 595. ‘This approach facilitates the AL]’s ultimate goal, which is to accurately

determine the extent to which Plaintiffs pain or other symptoms limit her ability to perform

basic work activities. Relevant evidence for this inquity includes Plaintiffs “medical history,

medical signs, and laboratory findings,” id., as well as the following factors set out in 20 C.F.R.

§ 416.929(c)(3) and 20 C.F.R. § 404.1529:

(i) [Plaintiff's] daily activities;

(it) The location, duration, frequency, and intensity of [plaintiffs] pain or

other symptoms;

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Gi) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication

[Plaintiff] take[s] or [has] taken to alleviate [her] pain or other symptoms;

(v) Treatment, other than medication, [Plaintiff] receive[s] or [has] received

for relief of [her] pain or other symptoms;

(vi) Any measures [Plaintiff] use[s] or [has] used to relieve [her] pain or other

symptoms (e.g., lying flat on [het] back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

(vit) Other factors concerning [Plaintiffs] functional limitations and

restrictions due to pain ot other symptoms.

In the present case, as recounted in the AL]’s decision,

[Plaintiff] testified that she experience[d] chronic kidney and flank pain

throughout the period at issue. As a result, she complained that this makes it

difficult to perform most of her daily functions including sitting, standing, ot

caring for her children. She estimated she could sit for up to 15 minutes at a

time. However, she testified that she is able to drive for 30 minutes. She also

estimated that she is able to walk for 10 minutes. She reported that she often

feels ill and experiences fevers, chills, or generalized body aches as a result to

decreased kidney function. [Plaintiff] described that she expetiences extreme

kidney pain ranging from a chronic dull ache to times where she is on the floor

screaming. She reported that she spends two hours lying in bed during the day.

(Ir. at 49-50.) Ultimately, the AL] found that Plaintiffs “statements concerning the intensity,

persistence[,] and limiting effects of these symptoms [were] not entirely consistent with the

medical evidence and other evidence in the record.” (Tr. at 50.) Nevertheless, the AL] found,

that “it is reasonable and logical to provide [five percent time off task] due to the distracting

impact of pain on [Plaintiffs ability to] focus.” (Tr. at 50.) The ALJ further limited Plaintiff

to sedentary work with extensive postural and no environmental limitations, which he

specifically linked to Plaintiffs “generalized discomfort, flank pain, and fatigue related to her

kidney disorders.” (Tr. at 57.)

In making these findings, the AL] recounted Plaintiffs extensive history of flank pain

with kidney swelling, episodes of kidney stones, hematuria, urinary tract infections, painful

15

urination, and voiding problems. (Tr. at 50, 51, 52, 54, 56, 57.) The ALJ further acknowledged

that Plaintiff had had her right kidney surgically removed in 2010 as a result of the same

condition. (Tr. at 50, 54.) In 2017, Plaintiffs urologist, Dr. Richard Natale, referred her to a

new provider (Tr. at 52), noting that there were “limitations in what [he could] offer her” (Tr.

at 1586). Plaintiff was thereafter treated at Wake Forest Baptist and Bethany Medical, where

she was prescribed hydtocodone-acetaminophen for her kidney-related pain. (Tr. at 2103,

2228, 2282, 2290, 2298, 2307.)

Nevertheless, it appears that the AL] largely discounted Plaintiffs claims of disabling

flank pain based on generally “normal” exam findings. For example, the ALJ asserted that

with respect to Plaintiff's kidney and flank pain,

Brief visits in 2015 document complaints of left-sided flank pain with trace

blood in the urine but do not otherwise document physical abnormalities such

as decreased strength, gaiT’, range of motion or gtoss motor function. . . . Visits

throughout 2016 are similarly unremarkable, noting complaints of more

significant kidney and flank pain during flares of renal colic. . . She continued

with routine and conservative treatment for these impairments and all

accompanying physical examinations remained fully normal in terms of

strength, gait, range of motion function except for petiodic suggestions of left-

sided flank pain or tenderness. However, there were no signs of distension,

guarding, or rebound to suggest greater abdominal distress.

(Tr. at 54; see also Tr. at 48.) The ALJ also noted that, in terms of activities of daily living,

Plaintiff “admitted to performing childcare, operating electronic devices, and driving,” which

the AL] found “generally inconsistent with the degree of functional limitation alleged.” (Tr.

at 56-57.)

However, this assessment neglects to consider the unpredictable, periodic nature of

Plaintiffs potentially debilitating pain. It also fails to consider the location of Plaintiffs pain,

which, due to the kidney’s location on either side of the spine, would not necessarily cause

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abdominal symptoms such as “distension, guarding, or rebound”, ot motor impacts such as

“decreased strength, gait, range of motion or gross motor function” on examination. Because

loin pain hematuria syndrome is a tate condition and poorly understood, Plaintiffs brief

extensively quotes articles which desctibe her impairment, stressing that “unremarkable

physical examinations ate normal in cases of loin pain hematuria syndrome and conservative

treatment with pain medication is the norm.” (Pl’s Br. at 21.) In remanding the AL]’s

ptevious decision, the Appeals Council also appeared to recognize the difficulties involved in

evaluating Plaintiffs condition. As set out above in relation to Plaintiffs mental impairments,

the Council instructed the AL} on remand to “obtain evidence from a medical expert related

to the natute and severity of and functional limitations resulting from the claimant’s

impairments, the date of onset, and whether the claimant’s impairments meet or equal the

severity of [a listed] impairment[.]” (It. at 265.) The AL ultimately failed to follow this

directive. Instead, the only medical opinion evidence considered in the ALJ’s 2023 decision

consists of the State agency medical consultant’s assessment from 2016. See Tr. at 56.) More

than seven yeats elapsed between these assessments and the October 2023 decision, yet in the

course of three hearings and two Appeals Council remands, no further information was sought

in the form of updated State agency reviews, consultative examinations, medical expert

opinions, or otherwise. The ALJ dismissed Plaintiffs complaints as inconsistent with the

objective evidence, without any medical opinion or insight as to what symptoms or objective

evidence would be expected in an individual with loin pain hematuria. Without any such

medical review, there is no basis to determine whether the “normal” examinations cited by the

ALJ ate consistent ot inconsistent with Plaintiffs loin pain hematuria and related symptoms.

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Thus, remand is necessary so that sufficient review can be undertaken to provide substantial

evidence to support the ALJ’s determination.‘

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding

no disability be REVERSED, and that the matter be REMANDED to the Commissioner

under sentence four of 42 U.S.C. § 405(g), and that Defendant’s Dispositive Brief [Doc. #8]

be DENIED, and Plaintiff’s Dispositive Brief [Doc. #7] be GRANTED to the extent set

out herein.

This, the 2.4 day of September, 2026.

h on Peake

nited States Magistrate Judge

® The Court notes that before the Appeals Council, Plaintiff introduced evidence of several subsequent

hospitalizations in 2023, including with pneumonia and acute kidney injury, requiring intubation and life

support. (Tr. at 11, 24, 29.) Those records were not considered because they occurred after the date of the

AL)’s decision, but all of the records can be further considered on remand.

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